Racial Gerrymandering

Introduction

“[R]acial gerrymander—the deliberate and arbitrary distortion of district boundaries ... for [racial] purposes.” Racial gerrymandering exists where race for its own sake and not other redistricting principles is the legislature’s dominant and controlling rationale in drawing its district lines and the legislature subordinates traditional race-neutral districting principles to racial considerations.

The racial gerrymander is not a new phenomenon. It was first used to circumvent application of the Fifteenth Amendment and perpetuate racial discrimination in the South after the Civil War. As early as the 1870s, minorities in Mississippi were packed into a single district to limit their representation in Congress. In 1960, the boundary of the city of Tuskeegee, Alabama, was redefined “from a square to an uncouth twenty-eight-sided figure” to exclude only blacks from the city.

During the redistricting rounds following the 1990 decennial census, racial gerrymandering made an about-face. It was used to increase minority representation, not limit it. Several states—including North Carolina, Georgia and Louisiana—believed that they had an obligation to maximize the number of minority districts, especially after the Voting Rights Section of the Department of Justice refused to preclear initial plans from those states on the ground that alternative proposals had been presented that included additional minority districts. State legislators responded to these rejections by adopting new plans that created additional minority districts. The Justice Department precleared the new plans.

In several states, suits were filed in federal district court challenging the constitutionality of the new redistricting plans on the ground that they violated the Equal Protection Clause of the Fourteenth Amendment. The first of the suits to reach the Supreme Court was Shaw v. Reno, challenging the North Carolina congressional plan. Justice O’Connor, in the opening sentence of the Court opinion, wrote: “This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional ‘right’ to vote, and the propriety of race-based state legislation designed to benefit members of historically disadvantaged racial minority groups.”

The Supreme Court, painfully aware of the history of racial discrimination, had recognized in earlier cases the necessity of considering the effects of a redistricting scheme on a minority group in order to protect the members of the group from plans that would have a discriminatory purpose or have the effect of reducing minority voting strength—protections guaranteed by the Fourteenth Amendment. In order to balance these competing constitutional guarantees, the Court had held that “the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest.” Such “race-based districting” demands close judicial scrutiny.

The Supreme Court rendered opinions in several cases involving racial gerrymandering challenges to state redistricting efforts in the wake of the 1990 census, including Shaw v. Reno, United States v. Hays, Miller v. Johnson, Bush v. Vera, Shaw v. Hunt (Shaw II), and Lawyer v. Department of Justice. In its opinions in those cases, the court attempted to balance the competing constitutional guarantees that 1) no state shall purposefully discriminate against any individual on the basis of race and 2) members of a minority group shall be free from discrimination in the electoral process. In balancing the constitutional guarantees, the Court set forth procedures to follow in evaluating racial gerrymander challenges to redistricting plans.

A plaintiff challenging the constitutionality of a redistricting plan on racial grounds must have standing and must prove that the plan was racially gerrymandered. Once the plaintiff proves that a district was racially gerrymandered, the court, applying strict scrutiny, must determine whether the state had a compelling governmental interest in creating the majority-minority district and whether the district was narrowly tailored to achieve that interest.

StandingThe Supreme Court has addressed the issue of “standing” (an individual’s right to bring an action in court) in racial gerrymandering cases. In United States v. Hays the Supreme Court spelled out the elements necessary for standing.

It is by now well settled that “the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an ‘injury in fact’—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of ... . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision ... .” In light of these principles, we have repeatedly refused to recognize a generalized grievance against allegedly illegal governmental conduct as sufficient for standing to invoke the federal judicial power ... .

Any citizen able to demonstrate that he or she, personally, has been injured by that kind of racial classification has standing to challenge the classification in federal court ... .

... Where a plaintiff resides in a racially gerrymandered district, however, the plaintiff has been denied equal treatment because of the legislature’s reliance on racial criteria, and therefore has standing to challenge the legislature’s action ... . On the other hand, where a plaintiff does not live in such a district, he or she does not suffer those special harms, and any inference that the plaintiff has personally been subjected to a racial classification would not be justified absent specific evidence tending to support that inference. Unless such evidence is present, that plaintiff would be asserting only a generalized grievance against governmental conduct of which he or she does not approve.

An individual will have standing if the individual resides in a racially gerrymandered district or presents evidence that he or she, personally, has been injured by the racial classification.

Proof Of Racial Gerrymander

Consideration of race. Although the Supreme Court has held several redistricting plans unconstitutional because of racial gerrymandering, the Court has made it clear that race-conscious redistricting is not always unconstitutional. “[T]his Court never has held that race-conscious state decision making is impermissible in all circumstances.”

The Court has said that, if a minority district were created through a process that adhered to traditional districting principles such as compactness, contiguity, respect for political subdivisions, and maintaining communities of interest, or other race-neutral criteria such as incumbent protection, the plan would not be found to purposefully distinguish between voters on the basis of race and would not be held unconstitutional.

A reapportionment statute typically does not classify persons at all; it classifies tracts of land, or addresses. Moreover, redistricting differs from other kinds of state decision making in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible discrimination.

As the Court said in Miller v. Johnson:

The courts, in assessing the sufficiency of a challenge to a districting plan, must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus. Redistricting legislatures will, for example, almost always be aware of racial demographics; but it does not follow that race predominates in the redistricting process ... . ‘[D]iscriminatory purpose’ ... implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker ... selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects ... .” The distinction between being aware of racial considerations and being motivated by them may be difficult to make. This evidentiary difficulty, together with the sensitive nature of redistricting and the presumption of good faith that must be accorded legislative enactments, requires courts to exercise extraordinary caution in adjudicating claims that a state has drawn district lines on the basis of race. The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a state can “defeat a claim that a district has been gerrymandered on racial lines.”

Race the dominant motive. In Bush v. Vera, the Court stated that, “[f]or strict scrutiny to apply, the plaintiffs must prove that other, legitimate districting principles were ‘subordinated’ to race.” “[R]ace must be ‘the predominant factor motivating the legislature’s [redistricting] decision.’”

Three principal categories of evidence are used to determine whether legitimate districting principles were subordinated to race: 1) district shape and demographics, 2) testimony and correspondence directly stating the legislative motives for drawing the plan, and 3) the nature of the redistricting data used by the legislature.

Bizarre shape. The shapes of the minority districts have played an important part in the Supreme Court’s decisions. “[R]eapportionment is one area in which appearances do matter.” A significant part of the evidence the Court relied on to find racial gerrymandering in Shaw II, Miller and Bush was the irregular shape of the constructed districts, along with demographic data. The Court held that “redistricting legislation that is so bizarre on its face that it is ‘unexplainable on grounds other than race,’ ... demands the same close scrutiny that we give other state laws that classify citizens by race.” “The plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”

Testimony and correspondence. The second category of evidence the courts consider is direct evidence of the legislature’s motive. Testimony of state officials, legislators and key staff involved in the drafting process played a significant role in the courts’ findings in Shaw II, Bush and Miller. In addition, testimony received by the legislature in public hearings and alternative plans presented during the redistricting process will be evaluated to determine legislative motive. Last, the courts will consider the state’s preclearance submission under Section 5 of the Voting Rights Act and other documents and testimony concerning the submission—including letters to and from the Department of Justice—to determine the state’s motives behind the plan.

Use of racial data. The third category of evidence considered by the court is the type and detail of data used by the state. The court has recognized the power redistricters have “to manipulate district lines on computer maps, on which racial and other socioeconomic data were superimposed.” When racial data is available at the most detailed block level, and other data such as party registration, past voting statistics, and other socioeconomic data is only available at the much higher precinct (“Voting Tally District”) or tract level, a red flag is raised.

The use of sophisticated technology and detailed information in the drawing of majority minority districts is no more objectionable than it is in the drawing of majority majority districts. But ... the direct evidence of racial considerations, coupled with the fact that the computer program used was significantly more sophisticated with respect to race than with respect to other demographic data, provides substantial evidence that it was race that led to the neglect of traditional districting criteria ... .

Strict Scrutiny

Compelling state interest. Once the court determines that traditional redistricting principles were subordinated to race and that race was the predominant factor used in redistricting, the court, applying strict scrutiny, must determine if the state has a compelling state interest in creating a majority-minority district using race as a predominant factor.

Just what is a compelling state interest that justifies classifying citizens on the basis of race in redistricting legislation? A common thread that runs through the racial gerrymandering cases is the assertion that a state has a compelling governmental interest in eradicating the effects of past discrimination and in complying with the requirements of sections 2 and 5 of the Voting Rights Act.

Remedying past discrimination. In order for its interest in remedying past or present discrimination to be a compelling state interest, a state must satisfy two conditions: First, the state “must identify that discrimination, public or private, with some specificity before they may use race-conscious relief.” “Second, the institution that makes the racial distinction must have had a ‘strong basis in evidence’ to conclude that remedial action was necessary, ‘before it embarks on an affirmative-action program.’”

Complying with Section 2 of the Voting Rights Act. A claimed violation of Section 2 of the Voting Rights Act could provide the compelling governmental interest the state needs to create a race-based district. “To prevail on such a claim, a plaintiff must prove that the minority group is ‘sufficiently large and geographically compact to constitute a majority in a single-member district;’ that the minority group ‘is politically cohesive;’ and that ‘the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.’”

A majority-minority district created to comply with Section 2 of the Voting Rights Act would not necessarily be a racially gerrymandered district. The minority group must be geographically compact in order for Section 2 requirements to apply. If a compact district were drawn with the minority group a majority of the voting age population in the district, the district would not be a racial gerrymander.

Complying with Section 5 of the Voting Rights Act. The third assertion of a compelling state interest is compliance with Section 5 of the Voting Rights Act. The Supreme Court, after lengthy consideration of the role the Department of Justice played in these cases, made it clear that the test for Section 5, as decided in Beer v. United States, was nonretrogression, not maximization of minority districts as urged by the Department of Justice. “We do not accept the contention that the State has a compelling interest in complying with whatever preclearance mandates the Justice Department issues.” “There is no indication Congress intended such a far-reaching application of Section 5, so we reject the Justice Department’s interpretation of the statute and avoid the constitutional problems that interpretation raises.”

Narrowly tailored. When a state asserts it has a compelling governmental interest in creating a race-based district, the court will apply “strict scrutiny” to determine whether the plan is narrowly tailored to achieve the compelling governmental interest. A state “must show not only that its redistricting plan was in pursuit of a compelling state interest, but also that its districting legislation is narrowly tailored to achieve [that] compelling interest.”

When a compelling state interest exists, “the legislative action must, at a minimum, remedy the anticipated violation or achieve compliance to be narrowly tailored.” On the other hand, any state action based on race must not go too far. As the Court said in Shaw I, “A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression.”

Traditional Districting Principles

Generally

As the preceding discussion shows, race cannot be the primary consideration in forming districts “without regard for traditional districting principles.” “[R]ace for its own sake and not other districting principles [cannot be] the legislature’s dominant and controlling rationale in drawing its district lines.” The state cannot rely on race “in substantial disregard of customary and traditional districting principles. Those practices provide a crucial frame of reference and therefore constitute a significant governing principle in cases of this kind.” “[W]e begin with general findings and evidence regarding the redistricting plan’s respect for traditional districting principles ... .”

What are “traditional districting principles” and why are they important? This section will answer that question by reviewing what has been said on this issue by the Supreme Court and selected lower courts. Although the phrase “traditional districting principles” is only five years old, appearing first in Shaw v. Reno, the actual principles often are as old as our union, although they may be called something else, discussed in a different context, or simply taken for granted.

As explained in the preceding section, a state’s redistricting plan is subject to strict judicial scrutiny only if race is the dominant motive for the final shape of the district. If a state uses “traditional districting principles”—often more aptly called “traditional race-neutral districting principles”—as the primary basis for creating a district and race is simply one of many considerations, the plan will not be subject to strict scrutiny. If that plan is challenged, a state will only have to show a rational basis for the district’s shape, something that is relatively easy to do, especially given the custom of judicial deference to legislative enactments.

Before the advent of racial gerrymandering cases in the 1990s, court review of how states drew district lines often arose in the context of one person, one vote cases. (Those cases and their historical background are discussed in chapter 3.) The concept of traditional districting principles grew out of the “rational state policy” used to justify population deviations. Rational state policy in this context was basically limited to maintaining compact political subdivisions.

Two Types Of Traditional Districting Principles

Since 1993, seven policies or goals have been judicially recognized as “traditional districting principles:”

●          Compactness

●          Contiguity

●          Preservation of counties and other political subdivisions

●          Preservation of communities of interest

●          Preservation of cores of prior districts

●          Protection of incumbents

●          Compliance with Section 2 of the Voting Rights Act

That is not to say others might not qualify, depending on a state’s history; these seven have been most often cited by the courts. They can be divided into two broad categories as follows.

Geographical and natural—these are the objective principles, including, first and foremost, compactness, followed by contiguity and preservation of counties and political subdivisions.

Political and legal—these are the more subjective principles, including preservation of communities of interest, preservation of cores of prior districts, protection of incumbents, and compliance with Section 2 of the Voting Rights Act.

Table 5 provides a summary of the districting principles used by each state during the 1990s round of redistricting. The text of the principles is shown in appendix G.

Table 5. 1990s Districting Principles Used by Each State
(in addition to population equality)

Key:

            C = Required in congressional plans
            L = Required in legislative plans
            NC = Prohibited in congressional plans
            NL = Prohibited in legislative plans
            YC = Allowed in congressional plans
            YL = Allowed in legislative plans

Note: A few states used additional districting principles, such as “convenience” (Minnesota), “understandability to the voter” (Hawaii, Kansas, Nebraska), and “preservation of politically competitive districts” (Colorado).

Source: NCSL, 1999.

Not all these principles were recognized in the first court cases. In Shaw I, the first case to use the term “traditional districting principles,” the Court identified them as compactness, contiguity and respect for political subdivisions. The Shaw I Court basically said, if you do not follow these principles, and if there is proof that race was a dominant factor, a plan will be subject to strict scrutiny. In Miller v. Johnson, the Court added communities defined by actual shared interests to expand the list of recognized traditional districting principles to four. Probably because the phrase “communities of interest” had been abused by the parties in the Miller litigation, the Court noted that the mere recitation that communities of interest existed in a challenged district would not be sufficient.

Geographical and natural. Compactness is by far the oldest and most important traditional race-neutral districting principle, but what is it? In Shaw I, the Court said that “reapportionment is one area in which appearances do matter.” The Court in Bush v. Vera used an “eyeball approach” to evaluate compactness. Compactness does not have to be measured, nor does a state have to show that it drew the most compact district possible, but compactness does have to be one of the primary goals.

In a vote dilution case from 1977, the Supreme Court found no constitutional violation in part because “sound districting principles” of compactness and population equality were followed. Justice Stevens in Karcher v. Daggett wrote an almost prescient concurrence focusing on the importance of compactness. Karcher was a political gerrymandering case decided in 1983, a decade before racial gerrymandering was addressed by the Supreme Court. In his concurrence, Justice Stevens said that geographic compactness is a guard against all types of gerrymandering and that it serves “independent values; it facilitates political organization, electoral campaigning, and constitutional representation.” “Drastic departures from compactness are a signal that something may be amiss.”

In 1994, the compactness requirement was described by a federal district court in California in the partisan gerrymandering case of DeWitt v. Wilson as having a “functional” component:

Compactness does not refer to geometric shapes but to the ability of citizens to relate to each other and their representatives and to the ability of representatives to relate effectively to their constituency. Further it speaks to relationships that are facilitated by shared interests and by membership in a political community including a county or a city.

The Court emphasized that the California congressional plan, drawn by a panel of retired state judges, was a “thoughtful and fair example of applying traditional districting principles, while being conscious of race.” It helped of course, that “[n]o bizarre boundaries were created” and that “ effort to comply with the Voting Rights Act emphasized geographical compactness.”

Political and legal. This category of districting principles is more subjective and amorphous. Courts are wary of hollow arguments created after the fact to justify a district’s shape. However, political and legal principles, when supported by the evidence, have been recognized as traditional districting principles, although the courts have been slower to recognize them and require the presence of compactness, contiguity and respect for political boundaries before even reaching these principles.

As early as 1978, before the racial gerrymandering cases, the U.S. Supreme Court, in Wise v. Liscomb, said that preserving the cores of prior districts was a legitimate goal that might justify population variances. In a 1997 case, Abrams v. Johnson, a challenge to Georgia’s court-drawn plan, the Supreme Court recognized preserving cores of prior districts as a legitimate race-neutral districting principle, along with preserving the four corner districts (a configuration Georgia had had for many years), not splitting political subdivisions, keeping an urban majority Black district, and protecting incumbents. The Court added, however, that the goal of protecting incumbents should be subordinated to the others because it is inherently more political and therefore suspect as well as more difficult to measure.

Abrams is an interesting case because the Court approved a plan that had only one majority-minority district out of 11, when, in Georgia’s last constitutional plan, there was one majority-minority district out of 10. The Justice Department argued vigorously that this was retrogression, but the Court said that another compact majority-minority district could not be created without violating Georgia’s traditional districting principles.

If plan drafters do not adhere to the geographical and natural traditional districting principles, none of the other principles may save a plan in which racial considerations are dominant. As Shaw and Bush noted, preserving communities of interest and protecting incumbents are not sufficient insulation against a claim of racial gerrymandering when compactness and regularity have been ignored.

Not Traditional Districting Principles

The Supreme Court has explicitly left open the question of whether compliance with a correct interpretation of Section 5 of the Voting Rights Act may be a race-neutral districting principle. It is clear, however, that compliance with the Justice Department’s preclearance objections and avoidance of litigation are not permissible districting principles.

The Foundation Of A Defensible Plan

Identifying and using traditional race-neutral districting principles is key to defeating claims of racial gerrymandering. Courts are willing to pierce the veil of claimed traditional districting principles to see if they really were used; it is a highly fact-based inquiry. “That the legislature addressed these interests does not in any way refute the fact that race was the legislature’s predominant consideration.” A state also cannot invoke incumbency protection when race was used as a means of determining which voters an incumbent wants. Creating a district that looks good is not enough. The districts invalidated in Bush maintained the integrity of county lines, took their character from a principal city, and were compact in some respects. “Traditional districting criteria were not entirely neglected ... . These characteristics are unremarkable in the context of large, densely populated urban counties.”

Applying traditional districting principles is both a science and an art. There is no shortcut or mathematical formula that will insulate a district from a challenge. Following the principles discussed in this section is a necessary first step.

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This page is maintained by the Redistricting Task Force for the National Conference of State Legislatures
Update: 5/28/09 (psw)
Comments: peter.wattson@senate.leg.state.mn.us